HR Update: Recruitment for SMEs: Checking before you Commit

You have run a good recruitment process, found the right candidate, and you have kept to our golden rule - you have made a conditional offer within 48 hours so that nobody has been left hanging around. So far, so good.

The next stage is the one we know many employers skip, or leave until four months into the job when something does not look right. Then somebody finally asks whether the references were ever taken up.

References, qualifications and pre-employment checks are not administrative box-ticking. Done properly, they take days not weeks, and they are the difference between a recruitment decision you can stand behind and one you cannot.

Make the offer conditional, and say so clearly

If your plan is to get an offer out quickly, and then check references before issuing the contract and handbook, you might feel like everyone is in a period of no man’s land. You are right, especially if you do not get on with the process quickly.

Because you have said, quite rightly, in the offer email that the offer is conditional on satisfactory references, and any other checks you need to complete.  So, advise them that it may be prudent for the candidate not to resign from their current job until those checks are complete, and that you will come back to them as soon as they are, at which point the start date can also be confirmed.

You could, as an alternative, avoid the word "offer" altogether at this stage: tell the candidate they are your preferred candidate and that you now need to complete references and verification before making a formal offer. Either approach protects you. What does not protect you is a short, cheerful email saying "we’d like to offer you the job" and nothing else.

Ask the candidate first

Before you contact anybody, give the candidate the chance to tell you what you are going to find. Two questions do most of the work:

1. What would your current employer say about you

2. If there is anything likely to be identified as part of the reference or verification process, tell us now rather than us finding it out later.

This is not a trap. It gives an honest candidate room to explain that they do not get on with their current Manager, which may well be exactly why they are looking. It also tells you a great deal about the candidate who says nothing and is then contradicted by a referee.

References: who to ask, and how

Character references are of limited value. They are often close friends who regularly socialise with the candidate. What you want is people who will be brutally honest, and preferably who the candidate has actually worked for.

Do your due diligence on the referees themselves. In some sectors, many organisations trade under several names, and it is just possible to think you are contacting a wholly separate previous employer when in fact you have telephoned a different branch of the candidate’s current one. Check the connection before you pick up the phone.

Tell the candidate exactly what you intend to do: which referees you will approach, and that you will not contact their current employer until they confirm they have resigned. Then actually pick up the phone. If a referee has given a telephone number, use it. Written references are slower and, increasingly, tell you almost nothing.

The question worth asking

If you ask a previous employer only one question, make it this: Would you re-employ this person?

It is the single most revealing question in a reference conversation, and it produces a straight answer far more often than open-ended questions about strengths and weaknesses.

When the answer is no

Clients ring us regularly to say a previous employer would not re-employ.  The offer is already out in writing, so what now?

Start by finding out why. A negative reference is not automatically a reliable one. We have all seen the Regional Director who gives everybody a terrible reference because they would not do exactly what was asked of them. Sometimes what was being asked came uncomfortably close to the line. The same person arrives in another organisation, is relieved to be out of the last one, and performs perfectly well.

So, do some filtering and a reality check. If the candidate had been in that job only a year or two, go back a step to the employer before. If that referee says they were genuinely good, the likelihood is a poor fit or a personality clash rather than a competence problem. Ask other people in the sector whether the account you have been given sounds like the person they know.

If, having done that, the concerns are real and you decide not to proceed, go back to the candidate and talk it through before doing anything else. Then be straightforward. Thank them for their honesty, and say that after careful consideration you have decided it is best that they do not join the organisation. Avoid contentious language such as "we are retracting the offer". You are still delivering a difficult message, but there is no reason to deliver it badly.

Can you give a bad reference?

This is one of the most persistent employment myths we encounter. The simple answer is that you can give a good or a bad reference. But it must be factually correct.

If you dismissed somebody having taken them through the full disciplinary procedure for persistent lateness, you can say so because it is factually accurate. Indeed, you probably should, because you owe a duty of care to the employer who has asked you a specific question and is relying on your answer. Some people would call that a bad reference. It is simply a truthful one.

What you cannot do is offer an unevidenced opinion. "They were utterly useless and a complete waste of time" is a bad reference in the proper sense, and it is not language to use in any reference process. Few people would put that in writing, but it does get said on the telephone. If you are on the receiving end of it, and it contradicts a written reference you already hold, ask the referee to evidence it.

Why "tombstone" references took over, and why you may not need one

Telephone references were once routine and people were comfortable giving them. Now, the default has shifted to the tombstone reference: start and finish dates; job title; nothing further. It confirms the person worked there, it is of some use, but it is not much help either.

The two anxieties driving this are discrimination claims and Data Subject Access Requests. On the second point, it is worth knowing that confidential references given for employment purposes carry an exemption from Data Subject Access Requests under the Data Protection Act, in the hands of both the giver and the recipient.

You can also make the position explicit, as we do in our own Handbook, by stating that where a reference is provided it is on the basis that its content will not be disclosed to the applicant.

Qualifications, credentials and CVs

In sectors where qualifications are essential and part of the fabric of the industry - financial services, health, transport, education - verification matters. Fraudulent qualifications and diploma mills are a real and growing problem, and the sophisticated operators issue certificates in the name of universities and colleges that have since closed down, precisely because that makes them almost impossible to check.

The most effective control is transparency at the front end. Tell candidates at the start of the process that the successful applicant’s CV will be checked line by line, with the institutions concerned, either by you or by an agency. Then add: if anything in there is slightly inaccurate, have a look now and tell us what needs changing.

A staggering number of people admit to embellishing a CV. Keep a sense of proportion about what you find. A couple of misstated dates well back in someone’s history probably does not matter. A few years at an organisation that turns out to have been less than a year raises an entirely different set of flags.

Other verification routes

References are not the only way to check somebody out.

LinkedIn is a very public way of displaying your career. Some applicants might even have more than one entry there, disguising previous roles on an old profile. Without much effort, you can at least check whether the basic facts on their CV match what they have put out there publicly.

A client of ours was recently offering a vehicle as part of a package. Their insurance broker came back to say the candidate appeared to have lost their driving licence twice. The candidate was very honest about it when asked, but the client decided not to proceed.

If a role involves 15,000 or 20,000 miles a year, a licence check is obvious and straightforward, and a broker can flag a driver who will be difficult or expensive to insure. It is worth knowing that most endorsements remain on the DVLA record for four years from the date of the offence or conviction, but more serious offences remain for eleven years from conviction. That is a longer reach than many people assume.

Health questions: tread carefully

Pre-employment health questionnaires are one of the areas where we see SMEs create the most risk for themselves. Under the Equality Act 2010, health questions are generally prohibited before a job offer is made. Even after an offer, you must be able to objectively justify the questions you are asking.

We regularly see standard forms running to twenty broad questions of the "have you ever had any heart trouble?" variety. Why are you asking that? If you cannot connect the question to the requirements of the role, do not ask it. For a role involving significant manual handling, asking about previous back trouble is fair enough. Beyond that you are walking into a minefield.

Our advice is to wait until you have offered the job and then ask two focused questions: are there any underlying health conditions we need to be aware of, and are there any reasonable adjustments we might need to make?

This also protects you. If a candidate declares nothing and then two months into the job says they have long-standing carpal tunnel syndrome and will be off for some time, they cannot rely on those first two months for disability discrimination purposes, because you neither knew nor could reasonably have been expected to know.

From the point you become aware, the duty to make reasonable adjustments applies and you should act on it. But the period before that is protected, which is precisely why the question is worth asking properly and recording the answer.

DBS checks: only where you are entitled to them

There is a marked tendency to “over-DBS”. A role does not become eligible for a check because it feels sensible, e.g. working in a restaurant does not qualify on the basis that children sometimes eat there. You need a clear justification, and eligibility is determined by the role, not by preference. If you are routinely requesting checks for a role, check with us before you go any further.

Where a check is genuinely required, timing is manageable. Straightforward checks are often quicker than people expect, but where one is pending, you can put arrangements in place so that the new starter is never unaccompanied in a position of risk - for example, never alone with children.

Run the declaration process properly. Say in the advertisement and at interview that the role requires a satisfactory DBS check (basic or enhanced level), and that anything the candidate believes may be flagged should be disclosed now. Hold that disclosure securely, commonly in a sealed envelope, and open it when the certificate comes back so the two can be compared. A mismatch is a red flag and needs to be addressed on its own terms.

A disclosure is not automatically the end of the matter. A caution at sixteen for taking a bicycle that was returned is unlikely to be relevant to an administrative role in a care home with no unaccompanied contact with vulnerable adults. Carry out an individual risk assessment, record your reasoning, and document the decision to proceed. Confidentiality and security around the whole process matter as much as the outcome.

Security vetting

If your organisation does Government or defence work, security vetting may apply; sometimes at a high level. There is no way around it. If the individual fails, they cannot work on that contract.

The question to separate out is whether vetting is a requirement of the job itself or a requirement of a particular contract, because the answer determines whether there is any alternative role available. It is a big area, but not an insurmountable one, provided you approach it in a balanced way. Employers who operate in that environment are usually well aware of the need.

Right to work: the one check with no way back

Every other check on this list allows for judgement. Right to Work does not. If somebody does not have the right to work in the UK, that is the end of the matter, and the civil penalty for getting it wrong now reaches up to £60,000 per illegal worker.

The requirement has been in place for many years, and yet new clients still ask us what a Right to Work check is. The process is not onerous. For UK and Irish nationals, a passport or certain other basic documents will do. For everyone else, a share code entered into the gov.uk service produces a printable report within minutes. The administrative burden is not a reasonable excuse, and it will not be treated as one.

Three points trip employers up repeatedly:

• Timing: The check must be completed before employment begins. Our advice is to complete it no later than the day before the start date, and definitely not on the morning they arrive. If there is any delay in providing the necessary documentation, it would be prudent to consider postponing their start date until this has been received and verified.  The risk of not doing so is that if they start, the organisation will have automatically lost its Statutory Excuse and could still be fined if audited.

• Records: Seeing the passport is not enough. You must retain a copy, dated and verified, or you lose your Statutory Excuse. Checks carried out fifteen years ago with no retained copy are worth nothing today.

• Everybody: Yes, including your son or daughter. You may know they have the right to work in the UK; the Home Office does not. If they go on the payroll, the paperwork and the records are required.

Where records are missing, the usual outcome is a full audit, which is where it does become onerous. Do not put it off. We will cover Right to Work in detail in its own episode, because it warrants one.

In summary

Make every offer conditional on whatever you need to check. Tell the candidate what you will be checking, and give them the chance to speak up first. Verify before the start date wherever possible, accepting that a DBS certificate may arrive afterwards and can be managed with supervision in the meantime. And, keep proper, accurate records of all of it.

This article is drawn from an episode of the BackupHR Bulletin, in which Guy was joined by Cathy Norton and Rosalie Collins. Further episodes in this series cover onboarding and right to work checks.

Want to discuss these updates or check if your current processes are secure? If you are a BackupHR client, please get in touch with our team. Even if you are not a client, we would love to help and are happy to offer some initial guidance.